Thursday, April 28, 2005


William Fisher

A year ago next month, Hope Kurtz died of a heart attack in Buffalo, New York. Her husband, Steve, an art professor at the University of Buffalo, called 911. Police and emergency medical services responded. What has happened to Steve Kurtz since then may be symbolic of the paranoia that has gripped the United States since the terrorist attacks of September 11, 2001.

What the police saw when they got to the Kurtz home, aside from Mrs. Kurtz’s body and a distraught husband, were vials, bacterial cultures, and an assortment of laboratory equipment, including a mobile DNA extracting machine used for testing food products for genetic contamination.

Kurtz explained to the police that these were some of the materials for an art exhibit he and his wife had been preparing on genetic modification. The Kurtzes were founders of a group called “The Critical Art Ensemble”, a collective of "tactical media" protest and performance artists.

Kurtz told the cops he has focused on the problems of the emergence of
biotechnology, such as genetically modified food. He and the art ensemble have published several books including "Digital Resistance: Explorations in Tactical Media" and "Electronic Civil Disobedience and Other Unpopular Ideas."

The police didn’t buy his story. They called the Federal Bureau of Investigation (FBI). Before long, a team arrived from Quantico, Virginia, in full HAZMAT gear, and began searching and testing. Erie County health officials declared the Kurtz home a potential health risk and sealed it for two days while a state lab examined the bacterial cultures found inside. They confiscated Mrs. Kurtz’s body, and Steve's computer, notebooks, art supplies and cat. They cordoned off the street, quarantined the Kurtz home, and took Steve Kurtz to a hotel, where the FBI questioned him for two days. Meanwhile, the special agent in charge of the Buffalo FBI office gave interviews to the press.

Officials declined to disclose what was examined and what was found, but eventually made it known that there was no danger to public health, and Kurtz was allowed to move back to his home.

But federal authorities obviously thought something in the Kurtz home was
Illegal, because prosecutors subsequently convened a grand jury, with Kurtz as its target. But instead of charging him with bioterrorism, he was indicted for mail and wire fraud, charges normally used against those defrauding others of money or property, as in telemarketing schemes.

Also indicted was Robert Ferrell, head of the Department of Genetics at the University of Pittsburgh's School of Public Health. The charges concern technicalities of how Ferrell helped Kurtz obtain $256 worth of harmless bacteria for one of Kurtz's art projects.

Kurtz’s supporters – most of whom refused to testify to the Grand Jury -- believe the attempt to cast the $256 technicality as a public health and safety issue is a face-saving measure by the government, which has already spent a considerable amount of time and money in their pursuit of this case.

No trial date has yet been set, and Kurtz’s lawyer has moved to have all charges dismissed. Meanwhile, FBI agents have been talking with people connected with Kurtz. They have reportedly interviewed museum curators in Massachusetts and the state of Washington, colleagues in New York and California, and current students at Buffalo.

The Justice Department will not comment on the case. Supporters say the government is inflating the case “to make their own initial overreaction to the confused call for help from the first responders seem anything but foolish overkill.”

If that’s true, it would not be the first time it’s happened since 9/11.

David Cole, a professor at Georgetown University Law Center and an internationally recognized legal authority on civil liberties, told IPS, “Not one person of the more than 5,000 locked up as a foreign national in preventive detention by John Ashcroft was ever convicted of a terrorist crime. The only convictions have been of U.S. citizens. (Former Attorney General) John Ashcroft labeled them as suspected terrorists, but it turned out they had nothing to do with terrorism whatsoever.“

Cole recalls that on September 2, 2004, “a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11.”

In October 2001, he adds, “shortly after the men were initially arrested, Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with Al Qaeda and planning terrorist attacks”.

But Ashcroft, he recalls, “held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail.”

The Detroit case was dismissed at the request of the DOJ because the prosecution failed to disclose to the defense evidence that other government experts did not consider the sketches and videotape to be terrorist casing materials at all and that the government's key witness had admitted to lying.

“When the Attorney General was locking these men up in the immediate wake of the (9/11) attacks”, Cole says, “he held almost daily press conferences to announce how many ‘suspected terrorists’ had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists.”

The DOJ has brought several other high-profile prosecutions. Among them is the case of “The Lackawanna Six”. Arrested in the Yemeni community of this old steel town in upstate New York, the six young men were charged under the federal anti-terrorism statute with providing material support to al-Quaida, which, prior to September 11, 2001, had been designated by the Secretary of State as a “foreign terrorist organization.”

Specifically, the men were charged with providing “material support” in the form of training. The training consisted of paying for a uniform, attending the training camp where they learned to use weapons, and standing guard duty. The charges against them also specified viewing videotapes of the bombing of the USS Cole and speeches by Osama Bin-Laden.

None of the defendants engaged in acts that were, at the time, obviously criminal in nature. It was not until several months after their return from Afghanistan that planes crashed into the World Trade Center. The six young men agree to plead guilty to providing "material support" to al Qaeda. Prosecutors said the defendants belonged to a terrorist "sleeper cell." The defendants claim they pled guilty because the FBI threatened to send them to Guantanamo Bay.